JUDGMENT

Yeoh Wee Siam J:

Enclosure

[1] This is the 2nd defendant's application for the following Orders:

"1A. Kebenaran kepada defendan kedua untuk memfailkan permohonan ini di luar masa.

1. Penghakiman ingkar oleh mahkamah bertarikh 17 Mac 2011 yang diperolehi oleh plaintif terhadap defendan atas alasan bahawa defendan-defendan telah gagal untuk memasukkan kehadiran bagi tindakan ini diketepikan di bawah Aturan 13 Kaedah 8 dibaca bersama Aturan 42 Kaedah 13 Kaedah-Kaedah Mahkamah 2012;

2. Segala prosiding perbicaraan berkenaan penghakiman ingkar tersebut digantung;

3. Selanjutnya sekiranya Mahkamah yang Mulia membenarkan permohonan pada perenggan 1 di atas, kebenaran diberikan kepada pihak defendan untuk memfailkan memorandum kehadiran dan pernyataan pembelaan bagi tindakan ini;

4. Kos ditanggung oleh pihak plaintif untuk ditaksirkan dan dibayar kepada defendan dengan serta merta;

5. Perintah dan/atau relif lain yang diputuskan adil dan suai manfaat oleh Mahkamah yang Mulia ini."

Brief Facts

[2] The plaintiff alleged that the 1st defendant had failed to settle contributions to the Employees Provident Fund ("EPF") due for the months of April 2009 to June 2009.

[3] The plaintiff commenced this suit (see writ of summons and statement of claim in encl 1) against the 1st defendant and all its directors, including the 2nd defendant, for the recovery of the purported arrears.

[4] On 17 March 2011, the plaintiff entered judgment in default ("JID") against all the defendants for the sum of RM269,707.00 ("the judgment sum"). Hence, the filing of encl 7 (see exh AP1 of 2nd defendant's affidavit in support in encl 8).

Court's Decision Given On 11 July 2013 Regarding Enclosure 7

[5] The 2nd defendant's application is dismissed. Costs of RM2,500.00 are to be paid by the 2nd defendant to the plaintiff forthwith.

Grounds of Decision

Service of cause papers and JID are regular

5.1. The Court finds that service of the writ of summons and statement of claim by the plaintiff on 28 January 2011 by AR Registered Post at the 1st defendant's registered address and/or business address, and on all the other defendants, including the 2nd defendant, at their respective registered address is regular (see affidavit of service in encl 3).

The plaintiff had filed the respective certificates of non-appearance against the defendants (see Perakuan Ketakhadiran in encl 5).

On 17 March 2011, after hearing submissions from counsel for the plaintiff, the learned Judicial Commissioner was satisfied that service on the defendants was duly effected. JID was given against all the defendants, with dividends and interests and costs as prayed.

The JID is therefore a regular judgment.

Applicable legal principles

A defence on the merits means merely raising only an arguable or triable issue (see Mallals' Supreme Court Practice, 2nd edn, vol 1 at p 84, and ; [1989] 1 MLJ 40; [1989] 1 CLJ 32).

To show a defence with merits, a draft defence must also be filed (see ; [2003] 3 MLJ 67; [2003] 6 CLJ 326 and ; [2006] 3 MLJ 281; [2006] 5 CLJ 230 at p 837). This was duly complied with by the 2nd defendant.

No merits to the Defence

5.3. The 2nd defendant contended that the judgment sum is inaccurate as payments were made since 2009.

Upon demand by the plaintiff vide a letter dated 19 May 2009, the 1st defendant wrote to the plaintiff to explain that on 28 May 2009 cheques were forwarded to the plaintiff totaling RM168,555.47. The 1st defendant expressed surprise as to why the plaintiff was claiming that there were contributions remaining in arrears (exhs AP3 and AP4 of encl 8). The plaintiff never replied the 1st defendant's letter.

Further, the cheques were issued before the Receiver and Manager ("R&M") of the 1st defendant was appointed, ie